T.N.Rajasekaran v. L.A.), Tamil Nadu Housing Board Schemes, Nandanam, Madras-35.3.The Chief Executive Officer, Madras

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.7.2007CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUWRIT APPEAL No.1525 OF 2001T.N.Rajasekaran...Appellant/Petitioner-vs-1.State of Tamil Nadu, rep.by the Secretary to Government, Housing and Urban Development Department, Fort St.George, Chennai-600 009.2.The Spl.Deputy Collector, (L.A.), Tamil Nadu Housing Board Schemes, Nandanam, Madras-35.3.The Chief Executive Officer, Madras Metropolitan Development Authority, Race Tower Buildings, Mount Road, Guindy, Madras-32....Respondents/RespondentsAppeal against the order dated 07.12.2000, made in W.P.No.81 of 1991,on the file of this Court writ petition filed under Article 226 of theConstitution of India to issue a Writ of Certiorari to call for therecords in G.O.Rt.No.124, Housing Department dated 08.05.1975 published inthe Tamil Nadu Gazette on 11.06.1975 on the file of the first respondentherein and quash the notification issued under Section 4(1) of the LandAcquisition Act relating to the property in Survey Nos.36, 37, 38, 39,53/1A, 53/1B, 53/2 and 54 measuring 1.90 acres from and out of the totalextent of 6.94 acres in Nerkundram Village, Saidapet Taluk, ChingleputDistrict.For appellant : Mr.S.David TyagarajFor respondents 1 & 2 : Mr.K.Balakrishnan, Addl.Govt.Pleader.For respondent 3 : Mr.J.Ravindran https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTS.PALANIVELU, J.The appellant herein has filed W.P.No.81 of 1991 for a Writ ofCertiorari to call for the records in G.O.Rt.No.124, Housing Department,dated 8.5.1975 published in the Tamil Nadu Gazette on 11.6.1975 on thefile of the first respondent and quash the notification issued underSection 4(1) of the Land Acquisition Act relating to the property inS.Nos.36,37,38,39, 53/1A, 53/1B, 53/2 and 54 measuring 1.90 acres fromandout of the total extent of 6.94 acres in Nerkundram village, SaidapetTaluk, Chingleput District. Since the said writ petition was dismissed bythe learned single Judge, this Writ Appeal has been preferred. 2. The case of the appellant/petitioner is that the lands comprised inSurvey Nos.36,37,38,39,53/1A, 53/1B,53/2 and 54, sprawling to an extent of6.94 acres in Nerkundram Village, Saidapet Taluk, were acquired by theappellant through a partition deed of the year 1964 and a release deed ofthe year 1972. He laid out the entire land into 83 house site plots,providing sufficient land for public purpose and road, naming the lay-outas Neelamegamnagar, in memory of his father. The lay-out was dulyapproved and sanctioned by the Director of Town and Country Planning, inhis proceedings No.273/73, dated, 01.10.1973. He set apart a portion ofthe land for laying roads and spent a considerable amount of money inleveling and developing the plots. Such portion, earmarked for layingroads and streets, would come to an extent of 1.90 acres, out of 6.94acres, after selling of some of the plots in the approved lay-out.3. The further case of the appellant/petitioner is that on 6.10.1972,the Chairman, Tamil Nadu Housing Board, Chennai, sent a requisition foracquisition of lands in Nerkundram village, for formation of NewNeighbourhood Scheme, known as Kalaignar Karunadhi Nagar Further ExtensionScheme. Accordingly, a draft notification under Section 4 (1) of the LandAcquisition Act (in short, "the Act") was issued for an extent of 460.08acres of land in the said village and the same was approved by theGovernment in G.O.Rt.No.124, Housing Development, dated 08.05.1975, whichwas published in the Gazette, dated 11.06.1975. Section 5-A enquiry wasalso undertaken under the said Act, after observing all formalities.Thereafter, Notification under Section 6 of the Act was issued inG.O.Ms.No.989, Housing and Urban Development Department, dated 07.06.1978.On the ground that there were procedural irregularities in the acquisitionof lands, the appellant filed W.P.No.1080 of 1986 before this Court forquashing the above said two notifications under Sections 4(1) and 6 of theAct, in which a Division Bench of this Court passed an order on21.01.1988, quashing the Declaration under Section 6 alone, observing thatsince the petitioner claimed the right of ownership by a partition deed ofthe year 1964 and release deed of the year 1972, the reliefs were grantedsubject to his proving the ownership at the time of enquiry under Section5-A of the Act. There was no appeal against the said order and the samehas become final. https://hcservices.ecourts.gov.in/hcservices/

4. Pursuant to the said judgment of the Division Bench, notices forenquiry under Section 5-A were issued in the year 1989 and the appellantput forth his objections, stating that though the Government, in itsletter dated 27.05.1982, decided to withdraw the lands from acquisition toan extent of 5.24 acres in the above said survey numbers, at the instanceof certain purchasers of the plots, the said land was not excluded and afresh declaration under Section 6 was issued in the year 1990 and an awardpassed; the compensation assessed on the strength of market value waspaltry; after disposal of the above writ petition, the respondents had nottaken any steps pursuant to the notification under Section 4 (1); thedeclaration under Section 6 of the Act ought to have been made within oneyear as per the amendment Act 68 of 1984 and hence the petitioner hasprayed for the relief extracted supra.5. Second respondent filed a counter affidavit, stating that by meansof a letter, dated 25.05.1994, the Government addressed the Tamil NaduHousing Board, stating that the actual requirements of the land should berestricted, in view of the increased land value, and, in spite of hissending a fresh requisition, no fresh 4 (1) proposal was initiated.6. In the counter of third respondent, it was mentioned that in orderto decongest the Central Business District of Chennai, it was planned toconstruct a market at Chennai Urban Agglomeration Area at Koyambedu, forwhich it was planned to acquire the land to an extent of aboutapproximately 295 acres for the proposed perishable markets (vegetable,fruit and flower), textile and foodgrains; a proposal was sent to theGovernment and the Government also accepted the same; the perishablemarket was successfully brought out and started functioning from 1996 andthe remaining textile and foodgrain market was delayed due to variouslitigations arising out of land acquisition proceedings; the subjectmatter in the present writ petition proceedings regarding 1.90 acres is inthe proposed foodgrain market at Koyambedu; the writ petitioner had noright to claim any compensation, because the lands, which form road andstreet, belong to the plot owners for their ingress and egress to theirsites; having promoted the land as lay-out and sold the plots to therespective purchasers, the promoter, namely, writ petitioner was divestedof his rights in respect of the land, earmarked for road and street andthat he was not an interested person in the acquisition proceedings.7. The learned single Judge, having observed that having promoted thelands as layout and sold the plots to respective purchasers, the promoteris divested of all his rights in respect of the lands earmarked as roadsand streets, has dismissed the writ petition. Aggrieved, this writ appealhas been filed.8. We heard Mr.Ss.David Tyagaraj, learned counsel for the appellant,Mr.K.Balakrishnan, learned Additional Government Pleader for respondents 1and 2 and Mr.J.Ravindran, learned counsel for the third respondent. https://hcservices.ecourts.gov.in/hcservices/

9. The main stay of the appellant is that he is still entitled forclaiming portions of land, admeasuring 1.90 acres in the above said surveynumbers, which is earmarked for streets and roads and that the prayer isrestricted to 1.90 acres in the total extent of 6.94 acres. 10. The crucial aspect to be ascertained in this case is, whether theappellant is still holding ownership over 1.90 acres ?11. Even though a feeble attempt was made by the appellant in hisaffidavit in the writ petition that an extent of 5.25 acres of his landwas excluded by the Government vide a letter dated 27.05.1982, on aperusal of the records, it transpires that subsequently the decision forexclusion of the said land was revoked by an order dated 14.09.1984.12. Mr.S.David Tyagaraj, learned counsel for the appellant, haslaboured hard to maintain his contention that the appellant is entitledfor quashing of the proceedings with regard to 1.90 acres.13. In order to unearth the real state of affairs, this Court calledfor relevant files from first respondent and, accordingly, they areproduced. On a scrutiny of the same, it is found that the claim of theappellant would no longer survive. It is stated therein that whileconverting the land into house site plots, the appellant did notrelinquish the road portion for local panchayat, for maintenance. At thetime of enquiry, the appellant stated that he sold away 42 house siteplots to General Insurance Employees Cooperative Housing Society.However, he could not furnish the details of persons to whom he sold awaythe remaining plots. He had also requested to pay compensation for anextent of 1.86 acres, left for road portion. But, his request was turneddown by the Chief Executive Officer of Madras Metropolitan DevelopmentAuthority, by means of his letter, dated 25.11.1985 stating that the landowners sold the plots to the dwelling owners, including the road, and anobjection was made to the payment of compensation with regard to theunoccupied area to the ex-land owners; the compensation claimed by theappellant cannot be paid to him, for the reason that the entire extentcovered under the award has been laid into house site plots, duly approvedby the Director of Town and Country Planning, and sold out to severalpersons, after making provision of amenities, such as road, public purposeetc.; inasmuch as he sold the entire extent of land covered by house siteplots, he cannot claim compensation for the area covered by the roadportion; the lay-out cannot be approved, without making any provision forroad; normally, the area covered by road portion should be handed over tothe civic authorities, for being maintained as road; in this case, theland owner has not handed over possession of the area covered by road tolocal panchayat; the Chief Executive Officer of MMDA, in his letter dated21.11.1985, maintained that compensation for the road portion inNeelamegam Nagar lay-out, which is covered by the award, should be paidto the above local body alone and not to the original land owner and ifthere is any dispute, the matter may be referred to a civil court under https://hcservices.ecourts.gov.in/hcservices/ Section 31 (2) of the Act. Since there are rival claims between theoriginal land owner (appellant herein) and the MMDA, represented by itsChief Executive Officer, Madras, the entire compensation for 1.86 acres ofland (being the area covered by the road in this lay-out) be kept in courtdeposit under Sections 31 (2) of the Act in the names of the appellant andthe MMDA, represented by its CEO, Madras, and a reference made to Courtaccordingly.14. The above portions throw much light and are very much helpful tounderstand the nature of the course of acquisition proceedings as well asthe intention of the appellant herein. 15. Once a lay-out has been approved by the appropriate authority, theportions earmarked for road and street would be left to the benefit of theplot owners, who purchased the plots from the original owner or promoter,as the case may be, and after the said approval, all the roads and streetsshall become public and, thereafter, the original land owner cannot layhis hands on the portions left out for the purpose of laying roads andstreets, claiming that he is still holding ownership over them since therecannot be any approved lay out without making any provision for road.Thus, in case, any plea has to be raised either objecting the acquisitionor the quantum of compensation, it should be either by the local authorityor the purchasers of the plots, but not the petitioner, since has soldaway the lands. 16. In a matter regarding leaving of space for the purpose of streetand road, a Bench of three Hon'ble Judges of the Supreme Court, inM/s.Gobind Pershad Jagdish Pershad v. New Delhi Municipal Committee, AIR1993 SUPREME COURT 2313, had an occasion to discuss the legal implicationof the circumstance. The decision, which contains the legal principle, isas follows :"Where it is established that a verandah in front of a shop wasa passage accessible to the public and it was being used forabout two decades by the public for passing and re-passing, itmust be held that the owner of the shop has dedicated theverandah to the public use. It is being used for passing and re-passing by the public at large and as such is a "street" interms of S.3 (13) (a) (of the Punjab Municipal Act). The ownerhas, thus, surrendered his rights in the property for thebenefit of the public. The user of the property is and alwaysshall be with the public. Any space, passage, verandah, alley,road or footway dedicated to public by the owner for passing andre-passing, partakes the character of a "street", and no longerremains under the control of the owner. The owner has no rightat all times to prevent the public from using the same. Whenthe owner of the property has, by his own volition, permittedhis property to be converted into a "street", then he has noright to claim any compensation when the same property is made a"public street"..." https://hcservices.ecourts.gov.in/hcservices/

17. As far as the present case is concerned, the award shows thatthere was a direction for deposit of compensation amount to be kept incourt deposit. It is worthwhile to note that the appellant had notwhispered anything about this process in his affidavit nor was it elicitedbefore this Court on his behalf. 18. In this connection, it is profitable to cull out the relevantportions in the "Table", appended to Part-III General Provisions in the'Development Control Rules for Chennai Metropolitan Area', as amended upto September,2004, which are as under:"B. Streets and Roads:Description(1)Minimum width(2)Remarks(3)(i) Streets intended toserve not more than 10plots and/or subject toa maximum length of 120metres7.2. metres (24')All streets shall becomepublic. The landowners/developers shallhand over thesestreet/roads portionthrough a deed to thelocal authorityconcerned, after formingthe roads as perspecifications givenunder relevant sectionof Chennai CityMunicipal CorporationAct or Panchayat Act orTamil Nadu DistrictMunicipal Act(ii) Streets intended toserve not more than 20plots and/or subject toa maximum length of 240metres9.0 metres (30')-do-(iii) Roads of lengthmore than 240 metres butbelow 400 metres12.0 metres (40')-do-(iv) Roads of lengthbetween 400 metres to1,000 metres18.0 metres (60')-do-(v) Roads of length morethan 1,000 metres24.0 metres (80')-do-19. From the above Rules, it is clear that all streets shall becomepublic and the land owners/developers shall hand over these street/roadsportion through a deed to the local authority concerned, after forming theroads. But, as could be seen from the original records produced before https://hcservices.ecourts.gov.in/hcservices/ us, the appellant/petitioner has not executed any deed in favour of thelocal authority handing over these street/roads portion, only with amalafide intention of making this type of fictitious claims, to illegallyenrich himself at the cost of the exchequer, by violating the mandatoryprovisions of law. 20. Learned counsel for the appellant places reliance upon certainauthorities, contending that due to lapse of considerable length of time,since the Government has not initiated any steps to proceed further afterthe notification under Section 4(1), further proceedings on the strengthof 4 (1) Notification could not be legally proceeded with. For thatproposition of law, he cited a decision of this Court in Sree VengeeswararAlagarperumal Devasthanam v. State of Tamil Nadu, 1984 (2) M.L.J. 427,wherein, it has been held as under :"The Section 4 (1) Notification was published as early as 8-5-1963. Twenty long years have rolled by since then. If the awardis to be passed, the petitioner would get by way ofcompensation, the market value as on the date of Section 4 (1)Notification. This will be making a mockery of the rights ofcitizens because the valuation in 1963 would be hardly thecompensation to-day after 20 years. This is besides the valueof the rupee itself having gone down. This is nothing but grossinjustice to the citizen."He also garnered support from the decisions of this Court in SpecialDeputy Collector (LA) v. Kuppu Gounder, 1985 WLR 694; Vadadri aliasChellappa v. State of Tamil Nadu, 1990 (1) M.L.J.219, andNandakrishnan,D. & another v. State of Tamil Nadu & Others,1997 WLR 593,which enunciate the identical legal principles. 21. The principles contained in the above said decisions areauthoritative judicial pronouncements and they are well settled. Themain core of the argument of the appellant, relying on those judgments, ashas already been adverted to supra, is that because of the long gap fromSection 4(1) Notification, the same need not be proceeded with further.In the judgments relied on by the learned counsel for the appellant,though the Courts have kept Section 4(1) notification intact, whilequashing the subsequent proceedings, the authorities have not initiatedfresh proceedings. Therefore, the Courts held that such proceedings areinvalid. But, in the case on hand, though on the earlier occasion,Section 6 Declaration has been quashed by this Court, Section 4(1)notification has been kept intact and the authorities, have, afresh,proceeded from Section 5-A enquiry. Therefore, the ratios laid down inthe judgments cited by the learned counsel for the appellant are very welldistinguishable and thus, cannot be applied to the facts of the case onhand. 22. The appellant/petitioner, in order to succeed in this case,must prove that he is the owner of the land in question. As could be seen https://hcservices.ecourts.gov.in/hcservices/ from the materials placed on record, the appellant herein after carvingout the plots in his land, has sold them to third parties, who werecompensated and dispossessed by the authorities. While selling the plots,it is mandatory on the part of any promoter/seller to carve out the roadsand streets and other public utilities for the usage of purchasers and onsuch formation, such roads and streets would lose the character of'private property' and gains the character of 'public road' whereupon nonecould claim any exclusive right, including the original owner of the land.Therefore, while selling the plots, after carving out the roads andstreets, the appellant would have definitely included the cost/value ofsuch portions left out as roads and streets in the plot cost and alsowould have collected the said cost from the purchasers of the plots.Therefore, at no stretch of imagination, he could be held to be the'owner' or 'person interested 'in the already sold out property. Knowingfully well that he has sold away the entire area carving out plots withroads and streets, the petitioner has made an attempt to gain wrongfully,by playing fraud, for which he shall be prosecuted. 23. Having already reaped the benefits of the land by selling it tovarious persons, after carving out plots with roads and streets, includingthe cost of the land carved out as roads and streets, by initiating theseproceedings, the petitioner/appellant wants to gain wrongfully from thestate exchequer. The claim of the appellant besides being illusory is alsoto thwart the public purpose for which the lands are sought to beacquired, after paying appropriate compensation to the owners of theplots, besides relocating them in proper place. It is also to be pointedout that in spite of direction by us, the petitioner/appellant has notproduced the original lay-out to show that even after selling the plots tothird parties, he is holding right or interest in the carved out roads andstreets. For all these discussions, we have no hesitation to hold thatthe appellant has no locus standi at all to claim the relief as prayed forin the writ petition, since he has no existing ownership right at all.Therefore, it is a futile and fraudulent exercise on the part of theappellant to claim the relief over the portions, meant for streets androads which have attained the character of 'public roads' after they werecarved out for the purpose of ingress and egress of the plot owners.Knowing full well that he would not come within the ambit of the term"person interested" as defined in Section 3(b) of the Land AcquisitionAct, under an illusory thought that the proposed attempt would yield hisillegal desire, he preferred a writ petition and even after suffering adismissal order from the learned single Judge, he has further jumped on tothe legal proceedings, by filing this Writ Appeal, in order to fight alosing battle. It may also be stated that in order to get wrongful gain,the appellant has brought about the fictitious legal proceedings againstthe authorities concerned, including the Government, by unnecessarilydragging the Government and its other limbs into an unwanted courtproceedings thus wasting the valuable time of the Court and the publicauthorities. https://hcservices.ecourts.gov.in/hcservices/

24. Hence, to curb such type of illegal attempt, which is rampant now-a-days, by greedy persons like the petitioner to gain wrongfully from thestate exchequer and also for unnecessarily stalling the acquisitionproceedings all these days, we feel, the appellant/petitioner has to besubjected to punitive action as contemplated under Section 46 of the LandAcquisition Act and any other law in force, for wilfully obstructing theauthorities from carrying on their legitimate duties contemplated underthe Land Acquisition Act. Accordingly, the respondents are directed totake appropriate action against the appellant/petitioner under Section 46of the Land Acquisition Act and any other law in force, for having comebefore this Court with unwanted litigation based on false claim, causingwastage of valuable time of the Court and the authorities to wilfullyobstruct the land acquisition proceedings initiated by the authoritiesconcerned, that too, after paying necessary compensation to the plotowners besides relocating them. With the above direction to the respondents, this Writ Appeal isdismissed with exemplary costs of Rs.10,000/= to be paid by theappellant/petitioner to the respondents. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dixit/RaoTo1.The Secretary to Government, State of Tamil Nadu, Housing and Urban Development Department, Fort St.George, Chennai-600 009.2.The Spl.Deputy Collector, (L.A.), Tamil Nadu Housing Board Schemes, Nandanam, Madras-35.3.The Chief Executive Officer, Madras Metropolitan Development Authority, Race Tower Buildings, Mount Road, Guindy, Madras-32.1 CC To Mr.David Tyagaraj, Advocate, SR NO.47351. W.A.No.1525 OF 2001AD(CO)RVL 22.08.2007